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[2016] ZAKZDHC 27
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Mzimela v Absa Bank Limited and Others (6960/2016) [2016] ZAKZDHC 27 (10 August 2016)
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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case No: 6960/2016
DATE:
10 AUGUST 2016
NOT
REPORTABLE
In
the matter between:
BONGIWE RITA MZIMELA
….............................................................................................
Applicant
And
ABSA BANK
LIMITED
...............................................................................................
1
st
Respondent
SHERIFF, DURBAN
NORTH
....................................................................................
2
nd
Respondent
ROSHALEN
NAIDOO
................................................................................................
3
rd
Respondent
JUDGMENT
Gorven J:
[1]
In 2007, the first respondent lent and
advanced moneys to the applicant. As security for the indebtedness, a
mortgage bond was registered
over the applicant’s i
mmovable
property situated at 3…. S….. C……, D….
N….
(the property). The applicant was
unable to meet her obligations under the loan and the mortgage bond
and judgement was taken against
her by the first respondent in the
sum of R5 734 733 along with interest on that sum and costs of suit
on an attorney and client
scale. In addition, the property was
declared to be executable. Pursuant to that judgement, the property
was attached by the second
respondent. A sale in execution was
advertised for and held on 9 June 2016. At the sale, the property was
sold to the third respondent
for the sum of R4 050 000.
[2]
Prior to the sale in execution, the
applicant attempted to sell the property through the offices of an
estate agency. She puts up
a sale agreement which she says was.
concluded as a result for R7 200 000 where the purchase price was
payable on or before 3 June
2016. She gives no explanation for why
this sale did not proceed. The first respondent’s attorney says
that the conveyancing
department undertook to inform him once the
purchase price had been paid so that the sale in execution could be
stayed. When he
heard nothing from them, the first respondent’s
attorney established from the conveyancing attorneys that no monies
had been
received by them pursuant to that agreement.
[3]
In this application, the applicant seeks
to set aside the sale in execution. Her complaint is that the
description of the property
in the advertisement for the sale did not
meet the criteria of rule 46(7). She says that, as a result, the
value of the property
was not achieved at the sale in execution and
that she has accordingly been prejudiced. She sets the value at the
purchase price
in the sale agreement which was not proceeded with.
There is no other basis on which the applicant relies to set aside
the sale
in execution. Only the first respondent opposes the
application.
[4]
The description of the property put up
in the advertisement, and in the conditions of sale, gave the
property description contained
in t
he title deed, the address
of 3…. S…… C……., D….. N…….
and went on to describe the property in the following terms:
‘Dwelling under brick and tile consisting of: entrance hall,
lounge, dining room, study, family room, sun room, kitchen, 7x
bedrooms, 5x bathrooms, scullery, laundry, building, walling, paving,
swimming pool.’
[5]
In the founding affidavit, the applicant
claims that a number of features of the property which ought to have
been included in the
advertisement were omitted. These are a double
lock-up garage, a triple open plan garage, a double garage at the
rear of the property,
an entertainment area with built in braai
facilities on the ground floor adjoining the pool, a koi pond located
in the garden area,
a barroom, air conditioners in all the rooms,
jacuzzi baths in three of the bedrooms, the fact that the house is a
multi-story
dwelling, the fact that the property has two road
frontages, an entertainment area on the second floor with unhindered
sea views,
that all six bedrooms are en suite and that there is also
a custom-made fireproof strong room on the property.
[6]
The requirement for the description in
the advertisement is governed by rule 46(7)(b) which, in its material
parts, requires ‘a
notice of sale containing a short
description of the property, its situation and street number, if any
. .
[7]
In argument, the applicant relied
primarily on the failure of the advertisement to mention the garages
and the fact that the property
had two road frontages. It was
submitted that these omissions meant that the provisions of rule
46(7)(b) were not complied with
in the advertisement.
[8]
It is clear that the provisions of the
rule are peremptory.
[1]
The purpose is
to
guard against a debtor being ‘despoiled without a corresponding
reduction of
his liabilities and
satisfaction of his.creditors.’ It stands to reason,
accordingly,
that
the purpose of the advertisement is to attract bidders. There is, as
was submitted by the first respondent, a continuum stretching
from a
bare, technical description of the property to what has been termed
the eulogistic style of auctioneers’ advertisements.
[2]
Neither of these two extremes meets the requirement of the rule. They
are met by a description which is somewhere between them.
[9]
The first respondent submitted the
following as principles by which to judge whether or not the rule has
been satisfied. The description
must be short. It must contain more
than the basic cadastral or technical description. It should state
whether or not there are
buildings or improvements on the land.
[3]
What must be inserted are the main characteristics of the property
which might reasonably be expected to attract the interest of
potential purchasers.
[4]
It neither requires nor allows the listing of all the features in the
eulogistic style of auctioneers. A submission in Rossiter
that where
there was no indication in the advertisement as to whether there were
any buildings on the property, the reasonable
reader could only have
concluded that the land was vacant land, was rejected.
[10]
The above principles are not attacked by
the applicant and I agree with them. Taking this into account, it is
my view that the advertisement
complied with the provisions of the
rule. I see no reason why a potential purchaser would not have been
attracted to the property
by the omissions highlighted by the
applicant. It is clearly a luxury property. It clearly has a number
of facilities and a highly
sought after street address. It seems
unlikely that a person reading the advertisement would come to the
conclusion that there
were no garages on the the property simply
because they were not specifically mentioned. It is certainly not
necessary to mention
each potential feature of a property.
In
the result, the application is dismissed with costs.
Govern J
DATE
OF HEARING: 10 August 2016.
DATE
OF JUDGMENT: 10 August 2016.
FOR
THE APPLICANT: S Ameer, instructed by Shabeer Joosab Attorneys.
FOR
THE FIRST RESPONDENT: AJ Boulle, instructed by Geyser Du Toit Louw &
Kitching Pinetown Inc.
[1]
Messenger of the Magistrate’s Court,
Durban v Pillay
1952 (3) SA 678
(A) at 683-4.
2
Ibid. The gender exclusive language is that of the judgment.
3
Pillay
v
Messenger of the
Magistrate's Court, Durban & others
1951
(1) SA 259
(N) at 264. This judgment was upheld on appeal. See note
1.
4
Nepaul v Messenger,
Magistrate’s Court, Port Alfred & others
1962 (1) SA 553
(N) at 555A-B.
5
Pillay
v
Messenger at 264.
6
Rossiter & another v
Rand Natal Trust Co. Ltd & others
1984 (1) SA 385
(N).
7
At388A-C.